In addition to the threat of sanctions and fear of detection (described above), the concepts of transparency and predictability already form part of the criteria currently used to assess the effectiveness of the immunity policy.184 However, the DOJ does not provide a clear definition of ‘transparency’. According to the ACCC’s Compliance and Enforcement Policy, transparency involves two primary considerations:185
• the ACCC’s decision-making takes place within rigorous corporate governance processes and is able to be reviewed by a range of agencies, including the Commonwealth Ombudsman and the courts
180 See, eg, Legal Services Directions 2005 (Cth) Appendix B; Legislative Standards Act 1992 (Qld) s
4.
181 See Chapter VII, The Role of Private and Public Enforcement – Confidentiality and Third Parties,
pg 230.
182 See Chapter VII, Confidentiality Across Borders, pg 261.
183 OECD, 'Regulatory Policies in OECD Countries - From Interventionism to Regulatory
Governance' (Organisation for Economic Cooperation and Development, 2002)112: ‘Linking regulatory policy with governance will also cement acceptance of regulatory policy as a permanent feature of government and public administration and one that is central to its overall performance and ability to meet citizens’ expectations.’
184 Hammond, above n 158, s V.
185 Australian Competition and Consumer Commission, 'Compliance & Enforcement Policy' (ACCC,
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• the ACCC does not do private deals—every enforcement matter that is dealt with through litigation or formal resolution is made public
These considerations do not constitute a definition of ‘transparency’ that can be used to assess the Immunity Policy. The OECD outlines a number of relevant definitions that have been used in the international community that demonstrate the broad nature of the term.186 PriceWaterhouseCoopers defines transparency as ‘the existence of clear, accurate, formal, easily discernible and widely accepted practices’187 whereas the World Trade Organisation believes the terms involves three core requirements:
1) to make information on relevant laws, regulations and other policies publicly available;
2) to notify interested parties of relevant laws and regulations and changes to them; and
3) to ensure that laws and regulations are administered in a uniform, impartial and reasonable manner.188
Whilst there is no universally accepted definition of ‘transparency’ there are three key considerations that are central to its definition that can be employed to assess the immunity policy, that serve the basic democratic principle of openness.189 These are:
(a) Publication of relevant information
This entails the availability of a clear, detailed and user-friendly description of the immunity policy’s requirements and implementation process.190 The DOJ criterion supports this by stating the importance of publishing relevant policy documents is crucial to the consistent and predictable operation of the policy.191
186 OECD, 'Public Sector Transparency and the International Investor' (Organisation for Economic
Cooperation and Development, 2003) 20.
187 Ibid. 188 Ibid.
189 OECD, above n 183, 66-71; see generally, Robert Vaughn, 'Transparency in the Administration of
Laws: The Relationship Between Differing Justifications For Transparency and Differing Views of Administrative Law' (2011) 26 American University International Law Review 969.
190 OECD, above n 186, 39. 191 Hammond, above n 158.
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Key Question/s: Is there clear, detailed and user-friendly publication of the immunity policy requirements and implementation processes by both the ACCC and the CDPP? (b) Prior Notification and Consultation
A report published by the OECD on regulatory reform stated that ‘prior notification and consultation of regulatory proposals to the public could enhance both the legitimacy and the effectiveness of regulatory measures.’192 In this vein, the design and operation of the immunity policy should be subject to public consultation that should be comprehensive, timely, transparent and accessible. When determining which public recommendations to take on board, the regulatory body should be accountable for their decisions by disclosing the comments received and react to or publish the reasons for taking them into account or not.193 The report published by the OECD warns that regulatory agencies should be acutely aware of becoming ‘captive’ to special interests and avoid consultation fatigue.194
Key Question/s: Has there been a comprehensive, transparent, timely and accessible public consultation in relation to the immunity policy? Are these consultations publicly available? Has the regulatory authority provided reasons for the inclusion/exclusion of the recommendations?
(c) Procedural Transparency
The regulatory authority must administer its policy in a uniform, impartial and reasonable manner.195 This concept is intrinsically tied to the accountability of the regulatory authority and therefore this consideration is likely to overlap with the discussion of reviewability.
192 OECD, above n 186, 44.
193 Ibid.
194 OECD, above n 183, Annex IV. 195 OECD, above n 186, 46-48.
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However, procedural transparency also relates to the inclusion of ‘review rights’ such as the ‘right to appeal.’196
Key Question/s: Does the ACCC and the CDPP administer its policy in a uniform, impartial and reasonable manner? Does the policy list any procedures for review or ‘review rights’?
5 Accountability
The concept of accountability broadly refers to the notion that elected officials are accountable to citizens for governmental performance which forms a key component of democratic governance.197 In the context of regulatory authorities, these agencies should be accountable to their principals for the manner in which they exercise the powers and discretions given to them.198 The principle of accountability is intrinsically linked to the concept of legitimacy, where democratic ideals mandate that the regulators who exercise government or public powers that are not directly elected should be held accountable for their decisions in other ways.199
Professor Nicolaides from the European Institute for Public Administration in the Netherlands believes that accountability involves two dimensions: the first is democratic, and the other more procedural, relating to the justifications of a regulator’s decisions.200
The focus here will be on the second dimension of accountability, as this research is not concerned with the overall democratic accountability of regulators, but primarily with how the regulator can be held accountable for their decision in relation to the Immunity Policy.
A number of measures have been identified that ensure accountability. These include: consultation, access to information and due process rules when making individual decisions or sanctions.201
The first two factors have been discussed in the context of transparency and therefore demonstrate the overlapping nature of the proposed criteria.
196 Ibid.
197 Peter May, 'Regulatory Regimes and Accountability' (2007) 1 Regulation & Governance 8, 9. 198 Bird, above n 178, 741-743.
199 Ibid.
200 OECD, 'Designing Independent and Accountable Regulatory Authorities for High Quality
Regulation' (OECD Working Paper on Regulatory Management and Reform, 2005) 7.
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The due process rules largely refer to the reviewability of regulatory decisions. Administrative review refers to the opportunity for a complaint to be heard by an independent administrative body or judicial body.202
The reviewability of administrative decisions ‘can be seen as the ultimate guarantor of transparency and accountability.’203
Administrative law accountability, such as through the Administrative Appeals Tribunal, provides a strong form of accountability, as it involves a response to the regulator’s failure to the meet the required standard.204 On
the other hand, the opportunity for judicial review is generally limited on the basis of ultra vires or lack of procedural fairness. The ACCC recognises the importance of accountability in the administration of its policies and sets out a comprehensive list of mechanisms in its aim to ensure its fair and transparent operation.205
Key Question/s: What are the accountability mechanisms that assure the effective implementation of the Immunity Policy? Do these accountability mechanisms apply to both the ACCC and the CDPP? More specifically, are decisions made in respect of the Immunity Policy subject to administrative or judicial review?
6 Consistency
The concept of consistency is rooted in the English law tradition through the doctrine of precedent.206 The proposition that laws are to be applied equally, without ‘unjustifiable differentiation’ is cemented in the rule of law.207 The principle requires that the justice system should be consistent in the application of laws and in practice.208 The term has often been used in the criminal law context in relation to sentencing:
Just as consistency in punishment – a reflection of the notion of equal justice – is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the
202 OECD, above n 183, 75-76. 203 Ibid.
204 Bird, above n 178, 747-748.
205 See Australian Competition & Consumer Commission, 'The ACCC's Accountability Framework
for Investigations' (ACCC, 2013).
206 See eg, Karen Steyn, 'Consistency - A Principle of Public Law' (1997) 2 Judicial Review 22. 207 Ibid.
208 Australian Law Reform Commission, above n 179, [2.72]-[2.73]; Australian Law Reform
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law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice.209
The CDPP also states that consistency is one of the principles upon which the Prosecution Policy is based, where one of the main aims of the policy is to ‘promote consistency in the making of the various decisions which arise in the institution and conduct of prosecutions.’210
Inherent within the principle of consistency are two competing considerations: the fettering of discretion given to public bodies and the requirement that they act consistently in the interests of fair administration.211 It is important that decision-makers retain a degree of discretion so that they can depart from their own policies where the circumstances require it.212 However, the policy needs to be ‘consistent with the statute under which the relevant power is conferred.’ In this vein, the decision-maker should not be precluded from ‘taking into account relevant considerations’ but should also not take account of irrelevant considerations.213
Related to consistency is the principle of certainty in that issues of uncertainty may lead to inconsistency.214 This is reflected to some extent in the criteria currently used to assess the immunity policy, where the DOJ believes that a high degree of certainty is necessary to ensure that potential applicants know how they will be treated in accordance with the policy and the consequences if they fail to do so.215
The publication of policies, reporting of outcomes and the requirement to disclose the reasons for the decision are key ways to measure consistency.216 These methods can help guard against ‘arbitrary decisions and reliance on erroneous
209 See Lowe v The Queen (1984) 154 CLR 606, 610-611: The observations of Sir Anthony Mason
may be regarded as the origins of contemporary Australian doctrine on the issue of consistency.
210 Commonwealth Department of Public Prosecutions, 'Prosecution Policy of the Commonwealth -
Guidelines for the Making of Decisions in the Prosecution Process' (Australia's Federal Prosection Service, 2014) <http://www.cdpp.gov.au/wp-content/uploads/Prosecution-Policy-of-the-
Commonwealth.pdf> 2, 4 [2.3].
211 Steyn, above n 206, 26. 212 Ibid.
213 Neat Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277, [24] (Gleeson CJ). 214 Australian Law Reform Commission, above n 179, [2.74].
215 Hammond, above n 158, s V.
216 See, eg, Queensland Ombudsman, 'Good Decision-Making Guide' (Queensland Ombudsman,
2007) 6: ‘Written agency (administrative) procedures can provide valuable guidance on the decision- making process in order to achieve consistency and fairness.’
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notions’ and ensure that decisions are determined on a case-by-case basis.217 In this way, there is significant overlap with the principles of transparency and accountability.
It must be noted that the Immunity Policy operates in a multi-dimensional capacity. In Australia, the policy is administered in a bifurcated system, meaning that there is a need for consistency in the processes and decision-making across both the ACCC and the CDPP.218 The policy also operates in an international context, where various regulators across the world have enacted similar policies into their anti-cartel enforcement regimes.219 Therefore, the issue of consistency is relevant to multi- jurisdictional immunity applications.
Key Question/s: Are there currently sufficient ways to assess whether the Immunity Policy is being applied consistently? Are the ACCC and CDPP consistent in their administration and operation of the
Immunity Policy? Does the policy operate consistently in the context of multi-jurisdictional applications at an international level?
7 Proportionality
The meaning of proportionality is largely tempered by the context in which it is used. Historically, the concept can be traced back to German constitutional and administrative jurisprudence.220 The use of the principle spread to the European Community, where it is widely used in relation to human rights discourse and judicial decisions.221 An example is the freedom of speech rights under Articles 10 and 14 of the European Convention on Human Rights.222
217 Emily Johnson, 'Should 'Inconsistency' of Administrative Decision Give Rise to Judicial Review?'
(2012) 71 AIAL Forum 50, 54.
218 See Chapter VI, Eligibility and Cooperation in Cartel Immunity, pg 170.
219 See Chapter VII, The Role of Private and Public Enforcement – Confidentiality and Third Parties,
pg 230.
220 See Helmut Goerlich, 'Fundamental Constitutional Rights: Content, Meaning and General
Doctrines' in Ulrich Karpen (ed), The Constitution of the Federal Republic of Germany (1988) 45-65.
221 See, eg, M Eissen, ‘The Principle of Proportionality in the Case-Law of the European Court of
Human Rights’ in R St J Macdonald, F Matscher and H Petzold (eds), The European System for the
Protection of Human Rights (Dordrecht, Boston: Martinus Nijhoff, 1993) 125-37.
222 Protection for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4
November 1950, 213 UNTS 221 (entered into force September 3 1953), as amended by Articles 10 and 14.
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The principle is now endorsed on many levels in the international community, particularly in relation to the law of armed conflict223 human rights treaties and constitutions and international documents around the world.224 On a domestic level, the principle is often referred to in the context of criminal law, administrative law and constitutional law.225 For instance, the High Court has affirmed the use of proportionality as a basic principle of criminal sentencing, as ‘a sentence of imprisonment imposed by a court should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances.’226
Furthermore, the concept has been widely used in the context of administrative law; as Justice Kirby has observed:
Under European law it is now well-established that a public authority (including the Executive Government) may not impose legal obligations except to the extent that they are strictly necessary in the public interest to attain the purpose of the measure authorised by the legislature. If the burdens imposed are clearly out of proportion to the authorised object, the measure will be annulled. There must therefore exist a reasonable relationship likely to bring
223 Enzo Cannzzaro, 'The Role of Proportionality in the Law of International Countermeasures' (2001)
12 European Journal of International Law 889, 915-16; James Crawford, Jacqueline Peel and Simon Olleson, 'The ILC's Articles on Responsibility of States for International Wrongful Acts: Completion of the Second Reading' (2007) 12 European Journal of International Law 963-991.
224 See eg, Nicholas Emililou, The Principle of Proportionality in European Law: A Comparative Study (Kluwer Law International, 1996); Evelyn Ellis, The Principle of Proportionality in the Laws of Europe (Hart Publishing, 1999); David Beatty, The Ultimate Rule of Law (Oxford University Press,
1st ed, 2004); E Sullivan and Richard Frase, Proportionality Principles in American Law: Controlling
Excessive Government Actions (Oxford University Press, 2009) 6: provides an overview of the
longstanding acceptance of proportionality in Western countries and argues that ‘every intrusive government measure that limits or threatens individual rights and autonomy should undergo some degree of proportionality review.’
225 See, eg, The Sentencing Act 1991 (Vic) s 5(1)(a); Sentencing Act 1995 (WA) s 6(1)(a); Crimes (Sentencing) Act 2005 (ACT) s 5(1)(a); Sentencing Act (NT) s 5(1)(a); Penalties and Sentences Act
1992 (Qld) s 9(1)(a); Criminal Law (Sentencing) Act 1988 (SA) s 10(1)(k); Crimes Act 1914 (Cth) s 16A(2)(k); Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A(a); Zecevic v Director of Public
Prosecutions (Vic) (1987) 162 CLR 645 at 662; Johnson v The Queen (1976) 136 CLR 619 at 636; Markarian v The Queen (2005) 228 CLR 357 at [69]; See, eg, Legal Services Directions 2005 (Cth),
Appendix B; Legislative Standards Act 1992 (Qld) s 4; Susan Kiefel, 'Proportionality: A Rule of Reason' (2012) 23 Public Law Review 85; McCulloch v Maryland (1819) 4 Wheat 316 at 421;
Commonwealth v Tasmania (Tasmanian Dam Case) (1983) 158 CLR 1 at 260; Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106; Nationwide News Pty Ltd v Wills (1992)
177 CLR 1.
226 See, eg, Hoare v R (1989) 167 CLR 348 at 354; Veen (No 1) v R (1979) 143 CLR 458 at 467; Veen (No 2) v R 143 CLR 472; R v Channon (1978) 20 ALR 1;Mirko Bagaric and Athula Pathinayake, 'Jail
Up; Crime Down Does Not Justify Australia Becoming an Incarceration Nation' (2015) 40 Australian
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about the apparent objective of the law. The detriment to those adversely affected must not be disproportionate to the benefit to the public envisaged by the legislation.227
In light of its widespread use as a guiding principle, proportionality can be seen as a ‘trade-off’ device that aids in resolving conflicts between norms, principles and values by acting as a legal standard by which individual or state actions can be assessed.228 The modern conception of the principle in administrative law emphasises that ‘proportionality requires the administration to balance all relevant interests at issue and then to use its discretionary powers in light of this balancing exercise.’229 More specifically, the assessment of proportionality generally involves a three-stage test: (1) Suitability; (2) Necessity; and (3) Proportionality stricto sensu, meaning proportionality in the narrow sense.230 These factors are assessed cumulatively but more emphasis is placed on the factors in ascending order:
(a) Suitability
With respect to the measure at question, the means adopted by the government need to be rationally related to the stated policy objectives.231 On this basis it is necessary to ascertain whether the adopted measure is suitable or appropriate to achieve the objective it pursues.232
(b) Necessity
This step entails the use of a ‘least-restrictive’ means test to ensure that the measure does not curtail individual rights any more than is necessary to achieve stated public policy goals.233 This test requires two important considerations. The first relates to whether there are less restrictive or milder measures that could be utilised, and secondly, whether the alternative measures are equally effective in
227 Peter Johnson, 'Proportionality in Administrative Law: Wunderkind or Problem Child?' (1996) 26 Western Australian Law Review 138, 147; New South Wales v Macquarie Bank (1992) 30 NSWLR
307, 323-324.
228 Mads Andenas and Stefan Zleptnig, 'Proportionality: WTO Law: In Comparative Perspective'
(2007) 42 Texas International Law Journal 371, 375.
229 Johnson, above n 227.
230 See, eg, Andenas and Zleptnig, above n 228, 388-399; Matt Meir, 'Let the Press and Government
Grapple: The Constitutional Question Posed by a Statutory Right of Reply' (2012) 17 Media and Arts
Law Review 368, 374; Pnina Alon-Shenker and Guy Davidov, 'Applying the Principle of
Proportionality in Employment and Labour Law Contexts' (2013) 59 McGill Law Journal 375, 378- 379.
231 Christopher Michaelsen, 'Reforming Australia's National Security Laws: The Case for a
Proportionality-Based Approach' (2010) 29 University of Tasmania Law Review 31, 41.
232 Andenas and Zleptnig, above n 228, 383-384. 233 Michaelsen, above n 231.
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achieving the pursued objective. The basic objective of this test is that ‘the measure adopted by the state should do minimal harm to citizens or the public interest.’234
(c) Proportionality stricto sensu
This final step is the most complex and requires an analysis as to whether the effects of a measure are disproportionate or excessive in relation to the interests affected.235 This is the stage that requires the true balancing of the competing objectives.
The Australian Law Reform Commission cautions against placing too much emphasis on the proportionality principle, as the importance and complexity of the issues under consideration is likely to involve value judgments and subjectivity.236 In light of these remarks, and other limitations of the principle237 the principle of proportionality will be used as an overall guiding principle. This use of proportionality as a guiding principle has been legislatively adopted in Australia. For example the Federal Court of Australia Act 1976 (Cth) stipulates in section 37M(2)(e) that: ‘the resolution of disputes (must be) at a cost that is proportionate to
the importance and complexity of the matters in dispute.’ Moreover, the ACCC itself
incorporates proportionality as a guiding principle by emphasising that the ACCC’s enforcement response must be ‘proportionate to the conduct and resulting harm.’238
Key Question/s: In conjunction with the assessment of the other guiding criteria, do the measures taken in relation to the Immunity Policy satisfy the three-stage proportionality test? If not, what other alternatives exist that may better satisfy this test?
These criteria do not seek to replace the current criteria used to assess the Immunity Policy but are aimed at enhancing the existing model. The use of this enhanced criterion allows the policy to be assessed within the enforcement context in